St. Ann v. McLean et al
Filing
54
ORDER DENYING 43 Motion ; granting in part and denying in part 44 Motion to Stay; granting in part and denying in part 47 Motion to Stay--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ST. ANN,
Plaintiff
v.
Case No. 5:15-CV-11770
District Judge Judith Levy
Magistrate Judge Anthony P. Patti
TODD MCLEAN, DEAN
POTILA, SAM MORGAN,
THOMAS HAYNES, and
KELLY BUCZEK,
Defendants.
___________________________________/
ORDER (1) DENYING PLAINTIFF’S MOTION TO REQUEST
ADDITIONAL INTERROGATORIES (DE 43) AND (2) GRANTING IN
PART AND DENYING IN PART PLAINTIFF’S MOTION FOR STAY OF
DEFENDANTS’ MOTION/BRIEF FOR SUMMARY JUDGMENT AND
ADDITIONAL REQUEST FOR EXTENSION OF TIME FOR RETRIVAL
[SIC] OF DISCOVERY (DE 44), AND PLAINTIFF’S SECOND MOTION
FOR STAY OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DE 47)
A.
Background
Plaintiff David St. Ann (#741290) is a state prisoner currently incarcerated
at the Michigan Department of Corrections (MDOC) Muskegon Correctional
Facility (MCF). On May 15, 2015, while incarcerated at the MDOC’s Saginaw
Correctional Facility (SRF) in Freeland, Michigan, Plaintiff filed the instant
lawsuit pro se against (1) “Arus” McLean, described as an SRF Assistant Resident
Unit Supervisor (ARUS); (2) “RUM” Zummer, described as an SRF Resident Unit
Manager (RUM); (3) “Arus” Polita,1 described as an SRF ARUS; and (4) Obell
Winn, described as the SRF Warden. (See DE 1).
On November 6, 2015, this Court entered an order granting Plaintiff’s
motion to amend and directing the Clerk of the Court to delete Defendants
Zummer and Winn but add Defendants Morgan and Haynes, both described as an
SRF ARUS. (DEs 5, 8.) On October 4, 2016, Judge Levy entered an opinion and
order denying Plaintiff’s objection and adopting my report and recommendation to
grant in part and deny in part Defendants’ motion for summary judgment. (See
DEs 16, 27, 28, 29). As a result of that order, Plaintiff’s only remaining claims
were those against Defendants McLean, Potila, Morgan and/or Haynes “which
concern the limited subject of plaintiff remaining at Level IV (or maximum
security/disciplinary unit) following the February 14, 2014 expiration of his
detention and loss of privileges[.]” (DE 29 at 4.)
On October 31, 2016, this Court entered an order granting Plaintiff’s second
motion to amend the complaint and directing the Clerk of the Court to add
Defendant Buczek and Count IV against Defendant Buczek for retaliation in
violation of the Eighth and Fourteenth Amendments. (DEs 24, 25, 30.) On
December 14, 2016, the Court entered a Scheduling Order, providing, in pertinent
1
The
Court notes that this Defendant has been referred to as both “Polita” and
“Potila” interchangeably throughout the various filings in this matter.
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part, that discovery must be completed on or before June 14, 2017, and that the
parties shall file dispositive motions by July 14, 2017. (DE 40.) The dispositive
motion deadline was subsequently extended to August 11, 2017, on motion by
Defendants. (DE 46.)
On August 11, 2017, Defendants McLean, Potila, Morgan, Haynes and
Buczek filed their motion for summary judgment. (DE 48.) Plaintiff filed a 93page response to that motion on September 18, 2017, and 267 pages of
exhibits/attachments. (DEs 50, 51.)
B.
The Instant Motions
Currently before the Court is Plaintiff’s March 22, 2017 motion to request
additional interrogatories, in which he seeks leave to serve additional
interrogatories on all Defendants beyond the “25 interrogatory limit.” (DE 43.)
Plaintiff also filed a June 7, 2017 motion for extension of time for discovery and to
“Stay Defendants’ Motion/Brief for Summary Judgment,” in which he states that
he is awaiting additional discovery and asks to “extend time for retrival [sic] of
discovery (three months)” and to stay Defendants’ motion for summary judgment
until September 14, 2017. (DE 44.) On August 4, 2017, Plaintiff filed a second
motion to stay Defendants’ motion for summary judgment, asking the Court to stay
Defendants’ motion for summary judgment until March 14, 2018 for the reasons
stated in his first motion and “in order to further gather discovery pursuant to Fed.
3
R. Civ. P. 56(f), and to fully undergo convalesce [sic] due to hospitalization and
surgery.” (DE 47.) Defendants have not responded to Plaintiff’s motions.
C.
Analysis
1.
Plaintiff’s Motion to Request Additional Interrogatories is
DENIED
Plaintiff requests to serve additional interrogatories on Defendants and states
that “due to the 25 interrogatory limit, [he] was restricted from asking these
additional questions.” (DE 43 at 1-2.)
Federal Rule of Civil Procedure 33 permits a party to serve no more than
twenty-five written interrogatories, including all discrete subparts, on any other
party without leave of court. Fed. R. Civ. P. 33(a)(1). It is within the Court’s
broad discretion to determine the proper scope of discovery, including the number
of interrogatories any party may serve. Fed. R. Civ. P. 26(b)(2). However, Rule
26(b)(2)(C) requires a court to limit discovery if: (1) the requested discovery is
unreasonably cumulative or duplicative or can be obtained from a more convenient
or less expensive source; (2) the party seeking discovery has had ample
opportunity to obtain the information sought; or (3) the burden or expense
outweighs the likely benefit of the discovery. Fed. R. Civ. P. 26(b)(2)(C). Leave
to serve additional interrogatories has been denied where the requesting party
failed to make a “particularized showing” why the additional discovery is
necessary. See Burket v. Hyman Lippitt, P.C., No. 05-72110, 05-72171, 05-72221,
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2007 WL 2421136, at *1 (E.D. Mich. Aug. 23, 2007) (Majzoub, MJ) (noting that
“[a]n important factor in the Court’s consideration of such a request is whether the
party has shown the specific content of the additional interrogatories that it seeks to
serve”); see also Aluma-Form, Inc. v. Geotek, LLC, No. 13-cv-2028-JPM/tmp,
2014 WL 12607091, at *2 (W.D. Tenn. Apr. 4, 2014) (collecting cases stating that
the party seeking leave to serve additional interrogatories must make a
“particularized showing” as to why the additional discovery is necessary).
Here, Plaintiff has not addressed the criteria set forth in Rule 26(b)(2)(C),
nor has he made the particularized showing necessary to support his motion. Also
significant to the Court’s analysis is the fact that Plaintiff has not presented to the
Court the number of interrogatories he wishes to propound nor the content of those
interrogatories. Accordingly, the Court is not in a position to determine that the
requested information is necessary to prove Plaintiff’s claims. Instead, he makes
vague and conclusory statements that “[n]ewly recent information has been
disclosed through the discovery process … that requires additional answers,”
Defendant’s responses to interrogatories have been “vague” and “in need of
clarification,” and Plaintiff has “additional questions that he would like to ask[.]”
(DE 43 at 1-2.) Plaintiff’s motion to request additional interrogatories (DE 43) is
accordingly DENIED.
2.
Plaintiff’s Motions for Stay of Defendants’ Motion for Summary
Judgment and to Extend Time for Discovery (DEs 44, 47),
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Construed in Part as Motions to Compel, are GRANTED IN
PART and DENIED IN PART
Plaintiff filed a motion for stay of Defendants’ motion for summary
judgment and to extend time for discovery “pursuant to Fed. R. Civ. P. 56(f)”2 and
Rule 16(b)(4) on June 7, 2017, and a second motion for stay of Defendants’ motion
for summary judgment on August 4, 2017. (DEs 44, 47.) Plaintiff’s motions
request an extension of the time for discovery and to file a motion for summary
judgment pursuant to Fed. R. Civ. P. 16(b)(4). Plaintiff asserts in his June 7, 2017
motion that he is “awaiting additional affidavits from various witnesses,”
requesting “clearer/better pictures,” “awaiting additional discovery that was
requested through subpoenas,” “is still in the process of waiting for additional
discovery” from a FOIA request, and that he would file a motion to compel “[a]fter
all of the above mentioned avenues are exhausted[.]” (DE 44 at 1-4.) He states in
his August 4, 2017 motion that “Defendants’ unwillingness to provide him with
discovery material and unwillingness to cooperate with the discovery
process/procedures of this Court’s Scheduling Order … has led to Plaintiff’s
inability to fully acquire the necessary information/material in order to fully gather
evidence and draft his motion for summary judgment.” (DE 47 at 7) (emphasis
added).
2
Federal
Rule of Civil Procedure 56 was amended effective December 1, 2010 and
one of the revisions was moving the provision that was Rule 56(f) into its current
location as Rule 56(d). Fed. R. Civ. P. 56, 2010 Amendment comments.
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The Court first notes that there was no motion for summary judgment
pending at the time Plaintiff’s motions for stay were filed on June 7, 2017 and
August 4, 2017. Accordingly, Plaintiff’s motions cannot be considered as Rule
56(d) motions. See Dennis v. Canadian Nat’l Ry. Co., No. 09-2312-BBD-cgc,
2011 WL 13161589, at *3 n.3 (“That paragraph does not constitute a Rule 56(f)
affidavit because it was executed months before the summary judgment motion
was filed and does not address the discovery provide by IC in the intervening
time.”). Rather, Defendants filed their motion for summary judgment on August
11, 2017. (DE 48.) Plaintiff responded to that motion for summary judgment on
September 18, 2017 with a 93-page response brief and 267 pages of
exhibits/attachments. (DEs 50, 51.) Tellingly, Plaintiff did not file a Rule 56(d)
(formerly Rule 56(f)) affidavit in response to Defendants’ motion for summary
judgment indicating that he needs further discovery to develop the issues addressed
in the motion or otherwise to respond to the motion. Accordingly, Defendants’
motion for summary judgment (DE 48) is ripe and ready for consideration by the
Court. To the extent Plaintiff’s motions (DEs 44, 47) are motions to stay
consideration of Defendants’ motion for summary judgment (DE 48), those
motions are DENIED.
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The Court finds that Plaintiff’s motions here (DEs 44, 47) are more properly
construed as motions to compel discovery responses and to extend the time for
Plaintiff to file his motion for summary judgment. (See DE 47 at 7 (“this has led
to Plaintiff’s inability to fully acquire the necessary information/material in order
to fully gather evidence and draft his motion for summary judgment”) (emphasis
added)). First, addressing the construed motions to compel, in light of Plaintiff’s
extensive response to Defendants’ motion for summary judgment filed September
18, 2017, and the voluminous exhibits filed by Plaintiff in support of his response,
it is not clear to the Court whether Plaintiff is still awaiting responses or responsive
documents to any of his discovery requests, or if Plaintiff has received all of the
discovery he sought within the Scheduling Order’s discovery deadline. Further, as
noted above, Plaintiff did not file a Rule 56(d) affidavit in response to Defendants’
motion for summary judgment indicating that he needs further discovery to
develop the issues addressed in Defendants’ motion, and that motion is ready for
consideration by the Court. In any event, noting that Defendants have not filed a
response to either of Plaintiff’s motions, and to the extent Plaintiff contends that he
is awaiting timely requested discovery and/or documents needed to support his
motion for summary judgment, the Court will GRANT in part Plaintiff’s
construed motions to compel and order Defendants to supplement any outstanding
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discovery responses within three weeks, or by December 19, 2017, unless the
discovery requests at issue are already complete.
Second, addressing Plaintiff’s motions to extend the time to file his motion
for summary judgment, Rule 16(b)(4) provides that “[a] schedule may be modified
only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(a)(4). To
the extent any of Plaintiff’s claims survive Defendants’ pending motion for
summary judgment currently under consideration by the Court, the Court finds that
Plaintiff will have satisfied the “good cause” showing required to extend the
deadline to file his own motion for summary judgment. Accordingly, if Judge
Levy ultimately decides to deny Defendants’ motion for summary judgment after
considering my report and recommendation (DE 48), Plaintiff may file his own
motion for summary judgment no later than 21 days thereafter.
IT IS SO ORDERED.
Dated: November 28, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on November 28, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti
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